Re King
[2018] VSC 644
•3 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0286
| IN THE MATTER of the Bail Act 1977 | |
| and | |
| IN THE MATTER of an application for bail by Sean Joseph KING | |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 November 2018 |
DATE OF JUDGMENT: | 3 December 2018 |
CASE MAY BE CITED AS: | Re King |
MEDIUM NEUTRAL CITATION: | [2018] VSC 644 |
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CRIMINAL LAW – Application for bail – Charges of acquiring traffickable quantity of firearms, prohibited person possessing firearms, committing indictable offence whilst on bail, possessing prohibited weapon, possessing drug of dependence, dealing with property suspected of being proceeds of crime, possessing cartridge ammunition without licence, dealing with unauthorised explosive without approval, prohibited person possessing silencer, attempting to commit indictable offence, attempting to commit indictable offence whilst on bail, non–prohibited person possessing category E handgun, negligently dealing with proceeds of crime, manufacturing firearms not category A or B whilst unlicensed, possessing traffickable quantity of unregistered firearms, disposing of category E handgun to non-firearms dealer, disposing of general category handgun to non-firearms dealer, importation of tier 2 goods - Compelling reason test – Substance abuse – Treatment available – Delay – Relevant criminal history – Previous grant of bail – Bail refused – Bail Act 1977.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gardner | Pica Criminal Lawyers |
| For the Respondent | Ms S Thomas | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On 17 April 2018, Sean King (‘the applicant’) was arrested and charged with 38 offences, alleged to have occurred between 28 December 2017 and 27 April 2018.
In summary, the offences alleged concern the trafficking and sale of firearms to a covert police member on 28 December 2017 and 12 April 2018 and four instances of importation of firearm parts. Additionally, on 17 April 2018 and 7 May 2018, search warrants were executed at three properties, locating a large number of firearms, firearm parts, ammunition, drugs of dependence and machinery capable of manufacturing firearms and firearm parts. The co-accused, Rajeev Singh, will plead guilty to a number of firearm charges at the County Court on 11 February 2019.
The applicant was on bail at the time of committing some of the alleged offences, between 28 December 2017 and 19 February 2018. This was for charges of possessing unregistered handguns (two counts) and possessing a drug of dependence (two counts). Those charges were finalised on 19 February 2018 and the applicant was found guilty of one count of possessing an unregistered handgun. He was fined $4,000 without conviction, becoming a person prohibited from possessing a firearm.
On 23 October 2018, the applicant was refused bail for the current charges in the Melbourne Magistrates’ Court. By an application dated 2 November 2018, he applied to this Court for a grant of bail.
The charges
The applicant has been charged with the following 38 offences:
·acquiring a traffickable quantity of firearms;
·being a prohibited person possessing firearms (ten counts);
·committing an indictable offence whilst on bail;
·possessing a prohibited weapon (a knife);
·possessing a drug of dependence (two counts);
·dealing with property suspected of being proceeds of crime ($1,885);
·possessing cartridge ammunition without licence (three counts);
·dealing with unauthorised explosive without approval (gunpowder);
·being a prohibited person possessing silencer (four counts);
·attempting to commit an indictable offence (two counts);
·attempting to commit an indictable offence whilst on bail;
·being a non-prohibited person possessing category E handgun;
·negligently dealing with proceeds of crime (two counts);
·manufacturing firearms not category A or B whilst unlicensed;
·possessing a traffickable quantity of unregistered firearms;
·disposing of a category E handgun to non-firearms dealer;
·disposing of general category handgun to non-firearms dealer; and
·importation of tier 2 goods, namely handguns and gun parts (four counts).
The alleged offending
The applicant was a target of ‘Operation BONITO-2017’, an investigation into the trafficking of drugs and firearms within southern metropolitan Victoria. The main target was his co-accused. The prosecution alleges the following against the applicant.
The first firearm purchase
On 28 December 2017, Victoria Police covert operative ‘CO 311’ met with the co-accused to purchase firearms. The co-accused instructed CO 311 to drive him to an address where he said he would source a machine gun for him. CO 311 paid $15,000 as a deposit. On arrival at an address in Hampton East, State Surveillance Operatives observed the co-accused exit the vehicle and speak with the applicant.
After entering the premises with the applicant, the co-accused returned to the vehicle and handed CO 311 a laptop case. This allegedly contained a category E, fully automatic firearm with magazine. CO 311 then handed the co-accused the remaining $9,500 owed and the co-accused took this into the premises. Enquiries revealed that these premises were occupied by the applicant.
Importation one
On 31 December 2017, Australian Border Force detected a parcel addressed to the applicant at the same address in Hampton East. The parcel contained a firearm magazine, a Carrera firearm slide, a firearm bolt and a part of a firearm grip.
Importation two
On 2 January 2018, Australian Border Force detected another parcel addressed to the applicant at an address in Brighton. It contained an airsoft gun frame and assorted firearm parts. This address is owned and occupied by the applicant’s parents.
Importation three
On 23 February 2018, Australian Border Force detected a further parcel addressed to the applicant at the Hampton East address. The parcel contained a frame for blank firing handgun and parts of a black handgun.
The second firearm purchase
On 12 April 2018, covert operative ‘CO 308’ attended a premises in Hallam to purchase 280 grams of methylamphetamine from the co-accused. After the transaction, the co-accused indicated he was able to sell CO 308 three firearms. CO 308 drove the co-accused to the same previous address in Hampton East and paid $15,000 as a deposit.
The applicant was observed arriving at the premises. The co-accused then returned to CO 308’s vehicle and placed a handgun in the glove box. CO 308 paid a total of $16,000 for the firearm. It was later found to be unregistered.
Search warrants one and two
On 17 April 2018, search warrants were executed at the Brighton address where the applicant was arrested. A large number of firearms, firearm parts, ammunition and drugs of dependence were located. Investigators also observed a workshop containing tools and machinery capable of manufacturing firearms and firearm parts.
A further warrant was executed at a property in Dinner Plain, a holiday house owned by the applicant’s parents. Police located a large number of firearms, firearm parts, ammunition and documents in relation to the manufacturing of firearms.
The applicant provided a no comment interview.
Importation four
On 27 April 2018, Australian Border Force detected an additional parcel addressed to the applicant at the Hampton East address. It contained one firearm silencer.
Search warrant three
On 7 May 2018, a search warrant was executed at a property in Blairgowrie, locating firearms and ammunition. This property is owned by the applicant’s parents.
Police investigation
On 1 May 2018, an analysis of the applicant’s computer found various PDF documents relating to firearms and getting items through customs undetected. The download content also revealed information about altering firearms and blank firearms to be used in the manufacturing of complete firearms, as well as photographs of the applicant and an unidentified female in the workshop at the Brighton address.
A biological examination of seven exhibits of firearms revealed DNA matching that of the applicant. A fingerprint examination of another exhibit indicated that the fingerprints located on firearm manufacturing paperwork belonged to the applicant.
Procedural History
The applicant has been in custody since his arrest. Initially the matter was set down for a contested committal hearing on 22 October 2018, however, that was vacated on 15 October 2018. Transcripts of recordings of the undercover purchases outlined above were not available. The matter is listed for committal hearing on 13 May 2019.
The applicable legislation
Section 4 of the Bail Act1977 (‘the Act’) provides that the applicant is entitled to bail unless the Act requires the Court to refuse bail.
The applicant is charged with the Schedule 2 offence of committing an indictable offence whilst on bail for another indictable offence.[1] Pursuant to s 4AA(3) of the Act, he is required to establish that a compelling reason exists that justifies the grant of bail.
[1]Bail Act 1977 sch 2 item 1(a).
Pursuant to s 4C(3) of the Act, in considering whether a compelling reason exists, the Court must take into account the ‘surrounding circumstances’. Section 3AAA provides the surrounding circumstances that a court must take into consideration include, relevantly to this matter:
(a)the nature and seriousness of the alleged offending, including whether it is a serious example of the offence;
(b)the strength of the prosecution case;
(c)the accused’s criminal history;
(d)the extent to which the accused has complied with the conditions of any earlier grant of bail;
(e)whether, at the time of the alleged offending, the accused –
(i)was on bail for another offence; or
(ii)was subject to a summons to answer to a charge for another offence; or
(iii)was at large awaiting trial for another offence; or
(iv)was released under a parole order; …
(f)…
(g)the accused's personal circumstances, associations, home environment and background;
(h)…
(i)the availability of treatment or bail support services;
(j)…
(k)the length of time the accused is likely to spend in custody if bail is refused;
(l)the likely sentence to be imposed should the accused be found guilty of the offence with which the accused is charged;
If satisfied that a compelling reason exists that justifies the grant of bail, the Court must then apply the ‘unacceptable risk test’ pursuant to s 4D(1)(b) of the Act.
Section 4E(1) of the Act provides the Court must refuse bail if satisfied there is an unacceptable risk that the applicant would, if released on bail:
(i)endanger the safety or welfare of any person; or
(ii)commit an offence while on bail; or
(iii)interfere with a witness or otherwise obstruct the course of justice in any matter; or
(iv)fail to surrender into custody in accordance with the conditions of bail.
In considering whether any relevant risk is unacceptable, s 4E(3) of the Act requires the Court to again have regard to the ‘surrounding circumstances’ and whether there are any conditions that may be imposed to mitigate the risk so that it is not an unacceptable risk.
Meaning of compelling reason
In Re Ceylan,[2] Beach JA considered the inquiry required under s 4(4) of Authorised Version No. 138 of the Act as to whether an accused shows compelling reason why their detention in custody is not justified. His Honour held:
For an applicant required to show ‘compelling reason’, a synthesis or balancing of all relevant matters must compel the conclusion that the applicant’s detention in custody is not justified.
[2][2018] VSC 361.
His Honour further determined:
compelling reason would likely be shown if there existed forceful, and therefore convincing, reason showing that, in all the circumstances, the continued detention of the applicant in custody was not justified. It is not, however, necessary … to show a reason which is irresistible or exceptional … in terms of resistibility, ‘compelling reason’ in s 4(4) of the Act might appropriately be described as reason which is difficult to resist. [3]
[3][2018] VSC 361, referencing Paduano (2005) 143 FCR 204 [37]–[39]; Plaintiff M64/2015 (2015) 258 CLR 173 [31], [64].
The statutory provisions which applied in Re Ceylan have since been amended. The current relevant provisions of the Act were considered by Beach JA in Re Alsulayhim:[4]
The test in Ceylan was whether there was compelling reason why an applicant’s detention in custody was not justified. Section 4C requires a compelling reason ‘that justifies the grant of bail’. While the statutory language is slightly different, the expression ‘compelling reason’ remains. Having considered s 4C in context, there is no reason to depart from the analysis or holding in Ceylan concerning the proper construction of the expression ‘compelling reason’. Further, the presence of the indefinite article in s 4C before the words ‘compelling reason’ does not mandate any different approach, to the issue of whether bail should be granted, from that described in Ceylan.[5]
[4][2018] VSC 570.
[5]Ibid [28].
The applicant
The applicant is 31 years of age. Prior to his arrest, he was living with his parents at the Brighton residence. He has always lived at this address, save for a period of two to three years when he resided with his girlfriend at his family property in Hampton East. He returned to the residence in Brighton in 2017.
The applicant’s family has run a commercial sign manufacturing business for 48 years. He is a qualified carpenter with metal working skills and worked for the family business between the ages of 18 and 28.
The applicant has abused ‘ice’ for the past two years, using it on a casual basis since the age of 21. He has a limited but relevant criminal history. On 19 February 2018, he was fined $4,000 without conviction for possessing an unregistered general category handgun.
The applicant’s contentions
The applicant submits that a combination of the following factors demonstrate a compelling reason that justifies a grant of bail.
Delay
The applicant submits that there will be significant delay before his case is determined. The matter is expected to be listed for a committal hearing in May 2019 and it was submitted that the trial may not be until May 2020, by which stage he will have spent approximately 24 months on remand. It was observed that this delay is not attributable to the applicant, but rather to delays with the compilation of the prosecution brief and the listing of hearings in the Magistrates’ and County Courts.
Available treatment
The applicant tendered a report by Dr Keflemariam Yohannes, a Resident Clinical Psychologist at the Hader Clinic. The applicant is assessed as suitable for the long-term inpatient drug treatment rehabilitation program at the Clinic.
He commenced two drug treatment programs in 2017, in Thailand and with Delmont Consulting Suites. However, he did not complete either. He has not previously undergone a long-term inpatient program, such as that offered at the Hader Clinic.
Jackson Oppy, General Manager of the Hader Clinic, gave evidence before me that the program involves an initial three month supervised inpatient treatment regime, with capacity to extend if required. He said the applicant’s movements would be restricted and supervised at all times by staff; and he would not be allowed to leave unless accompanied by a staff member. Assuming good progress, the applicant would then be transitioned to supported accommodation for a period of six months.
The applicant submits that his parents are willing to pay for extended residential treatment, which would remain in force until the committal hearing and beyond, and that this would reduce any unacceptable risk. It is acknowledged that the question of bail would be reconsidered at the conclusion of the committal hearing.
In cross-examination on behalf of the applicant, Detective Senior Constable McSpadden, the informant, agreed that on the available evidence, a link could be established between the applicant’s drug use and the alleged offending. Simply put, it is apparently accepted by police that the applicant engaged in the alleged offending, if proven, in order to provide himself with money to purchase illicit drugs.
Criminal history
As above, the applicant has very limited prior history. Having never previously been in prison, he has now been on remand for over seven months. It is submitted that he has reflected on his situation and is motivated to change his life.
Bail History
The applicant has never failed to answer bail. It is submitted there is no risk of him taking flight and failing to appear.
Family support and available surety
The applicant submits he has strong family support and a sizeable surety available.
Ultimate penalty
The applicant submits that even if convicted of all charges, there is a question as to whether his sentence would be greater than the period he would spend on remand.
Available conditions
It was submitted that should the court be moved to grant bail to the applicant, bail conditions can be imposed that ameliorate unacceptable risk to an acceptable level.
The respondent’s contentions
The respondent opposes bail, submitting that the applicant has failed to demonstrate compelling reason that justifies a grant of bail. The respondent contends the applicant poses an unacceptable risk of endangering the safety of the public and committing an offence whilst on bail. It is submitted that no conditions of bail would ameliorate these risks, given the seriousness and nature of the alleged offending, his past failures at drug rehabilitation and the alleged offending while on bail.
It is submitted that the charges indicate that he was engaged in a serious manufacturing and trafficking operation, conducted at multiple locations, some of which he used to store firearms, parts of firearms and ammunition. Further, it is submitted that as he committed some of the charges while on bail for other indictable offences related to firearms, he has shown a propensity to continue to reoffend while on bail. The respondent points to an unacceptable risk that any future offences committed while on bail would likely involve firearms which could endanger the safety and welfare of the public.
The respondent accepts that the anticipated delay in the resolution of the applicant’s case is undesirable, but submits it is not completely out of the ordinary.
Conclusion
In making the assessment of whether a compelling reason exists, s 3AAA makes it clear the court is to take into account the surrounding circumstances. The following circumstances are of particular relevance in this matter.
Nature and seriousness of the allegations
While the case against the applicant is currently untested and unproven, the offending alleged is very serious. It involves the possession of multiple operable firearms, parts of firearms and ammunition found and seized from three different locations.
The applicant is alleged to have carried out multiple importations of a number of items including a handgun, a silencer, and various parts associated with the manufacture of firearms. Further, he is alleged to have been engaged in the modification of replica weapons into operational firearms and the manufacture of firearms. A machine gun alleged to have been manufactured by the applicant is of high quality, fully capable of repeated fire and discharging an entire magazine of ammunition. Further, he was found to be in possession of at least three firearm silencers. The allegations suggest the applicant supplied weapons to a person involved in the drug trafficking trade. The totality of the items seized indicates the his activities are large scale and organised. The protection of the public is a highly relevant consideration.
Strength of the prosecution case
Whilst I do not have the benefit of the police brief, the material before me suggests the case against the applicant is far from being a weak one. It appears well arguable that it is a strong case, albeit circumstantial in some respects. A circumstantial case does not necessarily mean a weak case, indeed, the opposite is often the case. This is not to say that there may be aspects of the case that might properly be the subject of contest. The strength of the case may be much clearer by the end of the committal hearing.
Taking into account the nature of his activities and the sequence of events, it would appear that the allegations suggest the applicant engaged in a deliberate course of activity over a period of months that was directed towards the manufacture and disposal of firearms for commercial reward.
As stated, I am required to have regard to the nature and seriousness of the alleged offending. In my opinion the offending alleged is of a very serious nature.
Prior history and prior bail
The applicant is alleged to have committed offences while on bail for a firearms offence. Taking into account the scale of the alleged activities, the number of items found and the locations where they were discovered, it seems highly likely that a significant part of the operations were occurring while he was already on bail. Notably, the sale of the first firearm in December 2017 is alleged to have occurred while the applicant was on bail, awaiting the resolution of his 2016 firearms offence.
The sale of the second firearm allegedly occurred on 12 April 2018, only weeks after he pleaded guilty and received a penalty for the possession of a handgun in 2016. This suggests he learnt little from his first experience with the justice system and may have also defied a court order. These allegations and the continuation of his operation after his appearance on the first firearms offence, provide significantly reduced confidence that he would abide by conditions attaching to a grant of bail.
It is of further significance that two of the four alleged importations of gun parts occurred while the applicant was on bail, and the remaining two importations of gun parts occurred after he had been dealt with for the 2016 offending.
Delay
The committal in this matter will be heard on 13 May 2019. Thereafter, if the matter goes to a contested trial, it may be not be heard until 2020.
The potential delay is very unfortunate, however, nothing suggests this is unusual. The delay will depend, to a large degree, on the extent to which matters remain to be contested. In all the circumstances, due to the seriousness and scale of the applicant’s activity, I do not accept the submission that there exists a reasonable prospect that any sentence he may receive will be shorter than the period spent on remand.
Drug treatment
The applicant proposes he attend a residential drug rehabilitation program at the Hader Clinic. The report from Dr Johannes indicates he suffers from a substance use disorder. On the available evidence, it is not suggested he suffers from compromised mental health. He is 31 years of age and a fully formed, mature adult, with the advantage of trade qualifications. I have carefully considered the evidence and the applicant’s argument that he be permitted to seek treatment at the Hader Clinic.
The evidence is that the applicant was addicted to drugs and carried out his manufacture and trade in firearms so as to support his ongoing drug habit. I have taken this evidence into account in balancing and weighing the factors argued by the applicant. However, I am not convinced that this factor, even when combined with all others advanced by the applicant, establish a compelling reason that justifies the grant of bail.
I am not satisfied the requisite test has been met. The application for bail is refused.
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